June 6, 2006

Stuart Taylor Jr. and Benjamin Wittes think the Supreme Court Justices have too much free time -- what's with O'Connor taking 28 junkets in '04 and publishing 3 books in 4 years? -- and it's making them arrogant. (Link for subscribers to The Atlantic... or use this link, which is good for 3 days.)

Eliminating the law clerks would ... make them more “independent” than they really want to be, by ending their debilitating reliance on twentysomething law-school graduates. Perhaps best of all, it would effectively shorten their tenure by forcing them to do their own work, making their jobs harder and inducing them to retire before power corrupts absolutely or decrepitude sets in.

No justice worth his or her salt should need a bunch of kids who have never (or barely) practiced law to draft opinions for him or her....

Justice Harry Blackmun’s papers show that, especially in his later years, clerks did most of the opinion writing and the justice often did little more than minor editing, as well as checking the accuracy of spelling and citations. Ginsburg, Thomas, and Anthony Kennedy reportedly have clerks write most or all of their first drafts—according to more or less detailed instructions—and often make few substantial changes. Some of O’Connor’s clerks have suggested that she rarely touched clerk drafts; others say she sometimes did substantial rewrites, depending on the opinion.

There’s no reason why seats on the highest court in the land, which will always offer their occupants great power and prestige, should also allow them to delegate the detailed writing to smart but unseasoned underlings. Any competent justice should be able to handle more than the current average of about nine majority opinions a year. And those who don’t want to work hard ought to resign in favor of people who do.

39 comments:

Okay, this is not a perfect analogy and I'm certain it will be thoughtfully challenged, but very few in the legislative or executive branches write there on laws or seminal speeches. It is not apparent to me why the judicial branch should be held to a higher standard of, let's be honest, craftmanship?

To that, I would say that those branches should tighten it up, too. The legislative branch, in particular, would do well to do away with much of the publicity-hound nonsense and get down to actually legislating.

"very few in the legislative or executive branches write there on laws or seminal speeches"

The legislative and executive branch don't establish precedent, don't interpret the law and are not appointed to life terms.

Comparing the Justices' writing to speeches made or laws written is really not comparable.

Also, one should remember that, without fail, speeches made by members of the Executive and Legislative branch are political, not legal, in nature. I see little problem with a poltician outsourcing his spin.

I heartily support the aim, although I hesitate somewhat at the means. I would suggest that going back to two clerks - perhaps three for the Chief Justice - would be more appropriate than a single clerk.

This is an imperfect solution that attempts to do an end-run around a thorny problem: the writers, I suspect, would much rather impose term limits on Justices, but since that involves a messy amendment process, intimidation works too.

In general, though, not a bad idea. Needs modiciation, but not a bad idea.

twwren: For the reason Justice Stevens gives -- quoted in the article -- for drafting his own opinions: “Part of the reason [I write my own drafts] is for self-discipline … I don’t really understand a case until I write it out.” In legal analysis, which is very complex, you have to write to think -- you think by means of the process of writing. You can't just have a hunch and let someone else wrestle the materials into shape for you. You have to pursue the hunch, by reading the materials and crafting the sentences that use the materials and frame your arguments. You have to see when the opinion won't go where you thought it would go. You have to face the reality that the precedents and the facts of the case don't fit together the way you thought they would. It is only by doing your own work that you deal with this reality.

A legislator looks at a text and decides whether to vote for it. His vote is the act of making it law. A judge has no comparable power. He must be held to the discipline of using the tools of legal analysis.

TRJ"To that, I would say that those branches should tighten it up, too. The legislative branch, in particular, would do well to do away with much of the publicity-hound nonsense and get down to actually legislating."

That is precisely why I would ideally like to remove all electronic recording devices from the Hall of the House and the Senate Chamber. As a compromise, I'd be willing to start with simply removing cameras from the Senate, and let's see how that goes.

Of course, if I had my way, electronic media in the Senate would be a redundant concern, to some extent. But one step at a time.

By the way, I agree with Stevens on this. I was very disappointed to discover that Our Hero has lapsed from the habit of writing first drafts, for precisely the reason Stevens and Ann note. Rehnquist wrote two things back in the 80s that were very influential on me: he wrote in his book on the Supreme Court that there's something about getting an opinion printed - of standing there with it in your hands - that makes you take it a lot more seriously. Whenever I write something of any length now, I draft it until I'm happy, and then I print it to a PDF file, so that it can't be changed easily. There's something about the seeming permanance of it which forces you to take the process more seriously. Rehnquist also wrote that his view of Conference was that it was best that each person stated their views, and that the differences were better hashed out in writing, rather than verbally, around the Conference table. "It'll work itself out in the writing," I think, is a very strong argument.

You can have an idea in your head that makes perfect sense until you actually sit down to write it, at which point it turns to mushy. Most of the time, that has the salutary effect of forcing you to tighten your reasoning; in a few cases, it has the invaluable effect of making you realize that you had missed something important, and sometimes even something dispositive.

This is actually why I had high hopes for the internet: that it might re-instaurate the written word, or at least, put a new premium on the ability to write clearly, pursuasively and concisely. Sadly, faced with the certain doom of that awful prospect, certain folks who will remain anonymous invented things such as "Flash", and demanded that the web must have more "dynamic" content, which is to say, more dynamism and less content.

John: I heartily agree! I don't hire a research assistant. I have in the past occasionally hired a student, but only to collect materials and to write background memos. I've never had anyone else draft any part of any of my articles (or blogposts!). I don't much see the point of having someone else read or write for you. You have to do your own reading or nothing gets into your head. And you have to do your own writing in order to think and in order to have the writing represent your thoughts.

And let me add that I heartily resent having to read anything ghostwritten. It galls me no end that the cases we are reading and studying so closely are written by recent law school graduates and not the judge who's signed his name to them.

I should probably be putting this on one of Ann's other threads (guess which one) but doesn't one of you ex-SCT law clerks want to argue for the value of the "guild approach" where the masters trained the up-and-coming apprentices by actually having them "do" the work (to which the masters would then affix their signature)?

Ricardo: You're reminding me that way too many of the people who should be criticizing the Justices on this are themselves former clerks who therefore have a conflict of interest. The Justices are given way too much deference by lawprofs. They are willing to criticize Justices whose results they don't like, but they are insufficiently critical of the institution and its practices.

My position? Every U.S. Supreme Court Justice should have a dozen law clerks, at least. They're fun to have around, they carry stuff, and they cost almost nothing! The kids are happy to have the work and something to put on their resumes. Everybody's happy and what's wrong with that?

What the heck. I'll let everyone here in on a little secret: Research and writing has nothing to do with it. That's right. Judicial outcomes are determined by immutable political prejudice (or by coin flip, in the case of dedicated swing voters) and opinions are assembled by randomly cutting and pasting clippings from the briefs.

Well, it's an awful lot of work. the Justices need law clerks. I had a relative long ago in the way-distant past who was a Justice, and he died from overwork. They didn't have any clerks in those days. So some number of clerks between die-from-overwork and never-do-anything-yourself would be optimal.

"...too many of the people who should be criticizing the Justices ... have a conflict of interest."

Ann: You're making an excellent point. It's hard to get people to criticize things they grew up in, were indoctrinated in, are in some way working for, are in awe of, or are scared of. But isn't this exactly what is needed, if our prime goal is to hold institutions to high standards? And who better than the people most intimately connected to the institutions?

This is odd: "It galls me no end that the cases we are reading and studying so closely are written by recent law school graduates and not the judge who's signed his name to them."

Reading this thread reminded me of the New Criticism that florished before more fashionable "-isms" arrived from France. Back then, the rallying cry was that it's all about the art (book), not the artist (author). Today, I suppose, that view seems a bit old fashioned.

While I largely agree with what Ann has to say on this thread, there is still a good bit of wisdom in the New Criticism as applied to judicial writings. Before getting too caught up in the "they don't work hard enough" meme, let me suggest a different thought -- perhaps the SCOTUS judges who don't write their own opinions know something we don't about their own ability to communicate clearly and concisely.

Whether the judge grows in wisdom and understanding through the process of writing opinions is nice if it happens. But the point of the exercise is to generate a sound decision by means of an opinion that makes sense of the law so that future cases raising the same issue can be decided similarly. If the judge's writing skills aren't so great, it's just as well that he relies on clerks to handle that task, at least to the extent of generating a first draft (by the way, that's also how most of the briefs written in large firms get generated -- young lawyers write drafts that senior guys edit). How that relationship -- judge and clerk -- works in each instance is, I think, best left private. What matters is the quality of the opinion, particularly at the appellate level, that results from the collaboration.

That Stevens drafts his own opinions is fine, but doesn't make them anything special to look forward to. Does anyone really think that a typical Stevens opinion is that much better than what comes out of the chambers of Ginsburg or Thomas? Kennedy is different because his opinions, particularly on big cases, are so often disappointing exercises in bloviated rhetoric -- and, sadly, I think the bloviation (the kind of stuff Scalia mocks as the "sweet mystery of life" passages) are added by Kennedy when he is editing whatever the kids give him as a draft.

So, Ann, perhaps we would be better off if Kennedy used a bit more of the kids' drafts, and added a little less of his own special touch. Just a thought, as I have no inside information about how any of the justices manage their relationship with their clerks.

Thanks Ann. As I stated, not a perfect analogy. I would say that a legislator's responsibility goes far beyond reading the text; to drafting the text, proposing the text and/or sposoring the text. As for the executive branch, yes, speeches are not law but statements such as "Ask not what your country can do for you..." and "Tear down that wall, Mr. Gorbachev..." are arguably more singularly important than 99.99% of enacted laws or the interpretation thereof. Justice Stevens comments are only somewhat persuasive as they are mostly a comment on personal discipline.

Ricardo and Ann have raised an interesting question to me: how, exactly does the Judicial Branch evolve over time? They are insulated from the more direct pressures the other two branches of government face because of tenure; Ann brings up the question of professorial "deference." How would (or should) the judicial branch change?

You can never dispense with clerks entirely, because someone has to manage the cert process. Are the justices going to start reading all the petitions? I doubt it.

It would be better if the justices wrote their own opinions, and had clerks stick to research assistance and whatnot. More accoutnability. And hopefully, shorter opinions, given that SCOTUS clerks are straining to impress, while Justices would have less incentive to go on and on.

I'm impressed that you do all your own work. I was at a law firm for many years, and had a hard time delegating research on briefs. After a few years, however, work became impossible without it, and one developed reliable helpers. But I always wondered every time whether we'd missed some case...

I am not a lawyer, and I think that the judiciary is making itself a joke. Now I know why.

As I mentioned, I'm not a lawyer, however, I can reach up, at this very moment, and grab a printout of The Constitution of The United States of America and read any reference to the constitution, because I was a Marine, and I took an oath to that document. People other than lawyers are attached to the constitution. . . .anyways.

I LOVE this idea, not just cuz of the constitution, but also because I had a technical job.

I was an electronics tech, I knew the theory, I could read electronics schematics (non specialized) as though they were written words, and I was GOOD at it.

Now? I haven't done any of that for some time, and I would have to re-learn the skills I had previously, I might succeed, but I don't know, things change. I see law, as "the law" that way.

There are RULES in electronics, and there are new developments, you can't STAY proficient in that simple science, without practicing it.

Just like law. The law is based on a thousand inputs, conflicting with a million possible outputs, and you end up with requiring judges to troubleshoot the law for the good of the people.

This story says that the Supreme Court doesn't give a damn about theory, they just voice their opinions to their clerks, and leave it to the clerks to put the opinion together with case law.

That is negligence.

I'm not as well educated, at least formaly varifiable, but I can tell you this, I have NEVER contradicted anyones opinion without taking responsibility for why _I_ think they are wrong, and since the SCJ's have 1/9th of the most oppressive/powerful seats in this nation? They better be AT LEAST as articulate as a guy who's greatest responsibility was applying a heat sink to a particular prong while group soldering a single microchip.

I was troubleshooting and repairng a piece of plastic, metal and silicon, they are Fing with human lives.

I think they can dedicate a few hours to actually following the rules.

Oh! also, while I was doing that? I could have been fired. or while in the MC, I could have ended up in the brigg, if I screwed up bad enough.

"Perhaps best of all, it would effectively shorten their tenure by forcing them to do their own work, making their jobs harder and inducing them to retire before power corrupts absolutely or decrepitude sets in."

Would it though?

Ann, you yourself have mentioned in fairly disgusting detail how far decrepit Supreme Court justices will go to hang on to power just a little longer and/or to manipulate the succession.

Should you assume that someone who thinks their stinking colostomy bag isn't a problem will think that writing stinking opinions is unacceptable?

Supreme Court justices have, in effect, power above the law, power above God and man. The Constitution rules, and the Constitution is whatsoever they say it is. They can impose social policy on race or such other issues as may intrigue or amuse them, either permanently or for some set term such as for twenty-five years, or they can make things vague enough to keep petitioners keep coming back to them for further instructions, and they have. They can decree entire classes of human beings as non-persons to be killed with impunity, and they have. They can make it kosher to hurl granny out of her house for the benefit of a big corporation that will pay more taxes, or not. Justice is, in effect, whatever amuses them. They have that power for life, like popes. History tells us people often refuse to give up that kind of power.

Making Supremes give up Supreme power - literally - out of fear of the kinds of opinions they will write if they don't retire is all too likely calling a bluff that's no bluff.

Since it's not a bluff, don't call it. Let the Supremes have plenty of law clerks to perfume their acts of will with copious decorative legal work. I think you'll be much happier if you do.

I think you will be much less happy with the opinions of elderly and perhaps lazy Supremes who will not give up the power to turn their notions of the meaning of life or freedom into constitutional law, and who may have forgotten how to craft their opinions into law elegantly, but who will have remembered that whether or not you mock them you must still obey them.

The structural problem with the Supreme Court is that the political act of voting on particular decisions and the legal act of justifying that vote are only coupled to one another by the good-faith efforts of the judges to keep things that way. Delegating the researching and opinion writing -- but not the voting -- to clerks seems like it drives a subtle (or not so subtle) wedge between the two acts.

There's also the issue that the President's power to appoint judges and the Congresses power to confirm them are weakened if the judges are going to delegate the legal reasoning to unappointed, unconfirmed clerks.

If it honestly came down to where writing his own opinions threatened a judge's health, I would hope that the judge would have the grace to resign in favor of a more vigorous successor. Staying on in the job merely to preserve voting power when the judge can't provide the requisite legal analysis to justify the votes is abusing the system.

You guys who suggest a similar stricture for Congress are really on to something. Not so much that we'd get better legislation--sadly there's no hope of that <cough> Robert <cough> Byrd <cough><cough>--but at least we'd get a whole lot less of it!

Zach said: "If it honestly came down to where writing his own opinions threatened a judge's health, I would hope that the judge would have the grace to resign in favor of a more vigorous successor."

And when your hopes were disappointed?

If you want elderly judges to retire, the best way to achieve that would be to legislate to make them do so.

If lack of clerks are an inducement to retire, two bad and obvious consequences follow:

1. The quality of the opinions of judges that hold on to power will decline.

2. There will be a transfer of power, in effect, away from judges who would be ashamed to write bad opinions (and who will therefore retire) towards the shameless.

In time - I would guess very little time - the moral base of the court would shift towards doing things the way those who are or are expected to be winners do them. The moral system will follow the reward system.

Should you create a system that rewards shamelessness with continuing Supreme power? I think not.

Art. III Sec. 1: "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour...."

Ergo, you'd need to provide for a fixed term in the constitution, or at least provide for a delegation to Congress of the power to fix such a term. Some people have proposed this, but it is generally viewed as a very long shot.

"they can make things vague enough to keep petitioners keep coming back to them for further instructions, and they have."

This can be achieved by narrow rulings, too. Justice O'Connor is frequently praised for preferring to write narrowly, but I tend to think that whatever grounds you defend that practice on, don't say it's "modest". It isn't. It means that future cases must come back to the Court; it means that neither lower courts nor yourself in future cases are bound by learly-enunciated rules. That isn't to say there is no justification for minimalism, but that those advocated by Sunstein et al are fairly unconvincing.

"you'd need to provide for a fixed term in the constitution, or at least provide for a delegation to Congress of the power to fix such a term. Some people have proposed this, but it is generally viewed as a very long shot."

I'm loathe to tamper with it, but I have to admit, the idea of a fixed, non-renewable eighteen year term does have its attractions.

Ann said: "A legislator looks at a text and decides whether to vote for it."====

Since when do Senators actually read the nonses in what they vote for? We are continually inundated with stories about how 800 page Christmas tree bills are printed at midnight, and voted on at 8 AM, then followed by all the stories for the next year from legislators lamely explaining that they just hadn't had the time to see the sole-source earmarked language providing for a pygmy elephant training facility in Wishek, North Dakota to improve tourism.

Maybe if they actually read the bills, and took reading comprehension tests before being authorized to vote, there would be less time for mischief.

David Blue raises an interesting issue. Would the quality of opinions decline if there were fewer clerks?

Certainly the opinions would be shorter and have fewer footnotes. They would probably be both less clever and less pedantic. They would be less like the writings of law professors and more like the writings of lawyers.

"And why stop with law clerks? For example, why do Supreme Court Justices need secretaries? Eliminating secretaries would force the Justices to arrange their own schedules, keeping them from their debilitating reliance on staff assistance. Perhaps best of all, it would effectively shorten their tenure by forcing them to do all of their typing and filing, making their jobs harder and inducing them to retire before power corrupts absolutely or decrepitude sets in."

And,

"Just look at the modern-era Justice who never relied on his law clerks: William O. Douglas. Without clerks to help him, Douglas had no time for a policy agenda. His opinions are pure golden legal analysis. And Douglas’s tenure was an extremely brief 36+ years, ending quickly just a few short years after his massive stroke. If Douglas had relied on law clerks, I’m sure he would still be alive and judging today."